June 2011 Bar News

Taking to Task Race and the Criminal Justice system

by Robert S. Chang

In the wake of comments on race and crime reportedly made on October 7, 2010, by two Washington State Supreme Court justices, concerned community members came together to form what became the Task Force on Race and the Criminal Justice System. This column gives a brief overview of the Task Force and its work to date. Convened by the Honorable Steven C. González, chair of the Washington State Access to Justice Board and King County Superior Court judge, and by me, the first Task Force meeting was attended by representatives from the Washington State Bar Association, the Washington State Access to Justice Board, the commissions on Minority and Justice and Gender and Justice, and all three Washington law schools, as well as leaders from nearly all of the state’s specialty and minority bar associations, and other leaders from the community and the bar.

We met because the simplistic notion that black overrepresentation in our prisons occurs because blacks commit more crimes does not fit with our sense of how racial and ethnic minorities are treated in today’s society and in our criminal justice system. We agreed that we share a commitment to ensure fairness in the criminal justice system. We realized quickly, though, that it was important not to proceed on assumptions that unfair treatment existed. The Research Working Group was created to investigate disproportionalities in the criminal justice system and, where disproportionalities exist, to investigate possible causes. We examined differential commission rates, facially neutral policies, and bias as possible contributing causes.

We released our Preliminary Report on Race and Washington’s Criminal Justice System and presented our findings on March 2, 2011, when the Task Force met with the Washington State Supreme Court at the Temple of Justice in Olympia. In our executive summary, we noted that existing Washington research had found the following with regard to specific topics, agencies, and time periods studied:

• In Washington’s juvenile justice system, similarly situated minority juveniles face harsher sentencing outcomes and disparate treatment by probation officers.• Defendants of color were significantly less likely than similarly situated white defendants to receive sentences that fell below the standard range; among felony drug offenders, black defendants were 62 percent more likely to be sentenced to prison than similarly situated white defendants.• With regard to legal financial obligations, a common though largely discretionary supplement to prison, jail, and probation sentences for people convicted of crimes, similarly situated Latino defendants receive significantly greater legal financial obligations than their white counterparts. • Disparate treatment has been discovered in the context of pretrial release decisions, which systematically disfavor minority defendants.• Regarding the enforcement of drug laws, researchers have discovered a focus on crack cocaine — a drug associated with blacks stereotypically and in practice — at the expense of other drugs, and that the focus on crack cocaine results in greater disproportionality, without a legitimate policy justification.• This disparity in drug-law enforcement informs related asset forfeitures, which involve distorted financial incentives for seizing agencies and facilitate further disparity. • With regard to the Washington State Patrol, researchers have found that although racial groups are subject to traffic stops at equitable rates, minorities are more likely to be subjected to searches, while the rate at which searches result in seizures is lower for minorities.

We concluded that race and racial bias affect outcomes in the criminal justice system and matter in ways that are not fair, that do not advance legitimate public safety objectives, and that undermine public confidence in our criminal justice system.

The Recommendations/Implementation Working Group presented a set of recommendations to the Washington State Supreme Court. The Community Engagement Working Group is broadening our engagement beyond the legal community and is working to develop regional hubs in different parts of the state.

The Education Working Group, co-chaired by the deans of the three Washington law schools, has been developing educational programming that includes the following: a panel discussion, “Racial Disparity and the Criminal Justice System,” at the University of Washington School of Law in February 2011; a CLE on Civil and Criminal Advocacy Strategies for Protecting Civil Rights at Seattle University School of Law in April 2011; a panel at the Superior Court Judges’ Association Spring Conference in May 2011; sessions at the Washington State Access to Justice/WSBA Bar Leaders Conference in June 2011; and a conference at Gonzaga University School of Law on Race and Criminal Justice in the West in September 2011.

In Spring 2012, the law reviews at each of the three law schools are planning to publish our Preliminary Report. This co-publication reflects the recognition by the three law reviews that the subject of race and the criminal justice system is an important issue that merits this historic cooperation, a first in this state and perhaps in the nation. This joint effort by all three reviews is reflective of the spirit of cooperation that has brought so many people and organizations together on the Task Force. We have seen membership on the Task Force grow as more individuals, organizations, and institutions have committed themselves to learn and work together to address problems that exist in our criminal justice system. As proud as we are of our work to date, we recognize that we are at the beginning of a long road and that success is not assured. We invite engagement, feedback, and criticism. And if you find yourself so inclined, consider joining the Task Force.

The Preliminary Report and additional information can be found at the following websites:

Robert Chang is a professor of law and the founding director of the Fred T. Korematsu Center for Law and Equality at Seattle University. Starting this summer, he will assume an additional role as associate dean for research and faculty development. He has received numerous recognitions of his scholarship and service and has served in leadership positions in many organizations. He is currently serving as co-chair of the statewide Task Force on Race and the Criminal Justice System.